Employment Agreement - CyberGuard Corp. and Robert Lawten
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
April 21, 1997 by and between CyberGuard Corporation, a Florida corporation
(the Company), and Robert Lawten ("Employee").
WHEREAS, the Company, through its Board of Directors, desires to retain the
services of Employee, and Employee desires to be retained by the Company, on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
accepts employment, as Vice President Marketing of the Company upon the terms
of and subject to this Agreement.
2. TERM. The term (the "Term") of this Agreement shall commence on April
21, 1997, and shall continue for a period of one year in accordance with the
terms hereof.
3. DUTIES. During his employment hereunder, Employee will serve in such
capacity and with such duties as shall be assigned from time to time by the
Chief Executive Officer of the Company. Employee shall diligently perform such
duties and shall devote his entire business skill, time and effort to his
employment and his duties hereunder and shall not during the Term, directly or
indirectly, alone or as a member of a partnership, or as an officer, director,
employee or agent of any other person, firm or business organization engage in
any other business activities or pursuits requiring his personal service that
materially conflict with his duties hereunder or the diligent performance of
such duties.
4. COMPENSATION.
a. SALARY. During his employment hereunder, Employee shall be paid a
salary of $90,000 year, payable in equal installments not less than
monthly ("Base Salary"). The Employee's Base Salary shall be reviewed at
least annually by the Board of Directors or any Committee of the Board
delegated the authority to review executive compensation.
b. OPTION AND BONUS. In addition to salary, Employee shall be entitled
to participate in the Company's Stock Incentive Plan as adopted by the
Board of Directors of the Company on September 14, 1994, effective on
October 8, 1994, and amended from time to time (the "Stock Incentive
Plan"). In addition, Employee shall participate in a Management Bonus
Program anticipated to be established by the Company with an initial
annual targeted bonus equal to 50% of Employee's Base Salary (hereafter
the "Management Bonus Program").
c. INSURANCE. During his employment hereunder, Employee shall be
entitled to participate in all such health, life, disability and other
insurance programs, if any, that the Company may offer to other key
executive employees of the Company from time to time.
d. OTHER BENEFITS. During his employment hereunder, Employee shall be
entitled to all such other benefits, if any, that the Company may offer to
other key executive employees of the Company from time to
time.
e. VACATION. Employee shall be entitled to that number of weeks,
vacation leave (in addition to holidays) in each calendar year during the
Term in accordance with the Company's vacation policy for executives as
it may be in effect from time to time. Except with respect to vacation
time unused as the result of a request by the Company to postpone a
vacation, any unused vacation from one calendar year shall not carry-over
to any subsequent calendar year.
f. EXPENSE REIMBURSEMENT. Employee shall, upon submission of
appropriate supporting documentation, be entitled to reimbursement of
reasonable out-of-pocket expenses incurred in the performance of his
duties hereunder in accordance with policies established by the Company.
Such expenses shall include, without limitation, reasonable entertainment
expenses, gasoline and toll expenses and cellular phone use charges, if
such charges are directly related to the business of the Company.
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5. GROUNDS FOR TERMINATION. The Board of Directors of the Company may
terminate this Agreement for Cause. As used herein, "Cause" shall mean any of
the following: (i) an act of willful misconduct or gross negligence by Employee
in the performance of his material duties or obligations to the Company; if
such act is capable of cure, Employee shall be given written notice and such
act shall not be deemed a basis for Cause if cured within 60 days after written
notice is received by Employee specifying the alleged failure in -.reasonable
detail (and during such 60 day period, Employee shall continue to be employed
by the Company at full pay), or (ii) conviction of Employee of a felony
involving moral turpitude or (iii) a material act of dishonesty or breach of
trust on the part of Employee resulting or intended to result directly or
indirectly in personal gain or enrichment at the expense of the Company.
6. TERMINATION BY EMPLOVEE. Employee may terminate this Agreement with Good
Reason. In the event of termination by Employee for Good Reason, Employee shall
be entitled to the benefits of Paragraph 7b. of this Agreement. "Good Reason"
means:
a. A material breach of the provisions of this Agreement by the
Company (except those set forth in Paragraph 4a.) and Employee provides
at least 15 days' prior written notice to the Company of the existence of
such breach and his intention to terminate this Agreement (no such
termination shall be effective if such breach is cured during such
period); or
b. The failure of the Company to comply with the provisions of
Paragraph 4a. or to pay any amounts due under the Management Bonus Program
provisions of Paragraph 4b. for an uninterrupted 10 day period.
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
a. In the event Employee's employment with the Company (including its
subsidiaries) is terminated by the Company for Cause as provided in
Paragraph 5 then, on or before Employee's last day of employment with the
Company, the provisions of this Paragraph 7a. shall apply. These same
provisions shall apply if Employee terminates his employment without Good
Reason as described in Paragraph 6.
i. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. The Company
shall pay in a lump sum to Employee at the time of Employee's
termination such amount of compensation due Employee for services
rendered to the Company, as well as compensation for unused vacation
time and earned bonus, as has accrued but remains unpaid. Any and all
other rights granted to Employee under this Agreement shall terminate
as of the date of termination.
ii. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraphs 14 and 15 shall, at the option of the Company in its sole
discretion, continue to apply with respect to Employee for a period of
up to one year following the date of termination, so long as the
Company: (x) provides a written notice to Employee within 5 business
days after Employee's termination that the Company wishes to exercise
its right to require that Employee not compete and not solicit in
accordance with Paragraphs 14 and 15 hereof; and (y) Company
thereafter pays to Employee in periodic installments, without
interest, in accordance with the regular salary payment practices of
the Company an amount equal to (.1) the amount of Employee's annual
Base Salary as in effect immediately prior to Employee's date of
termination, multiplied by (.2) the number of months that the Company
is requiring the non-competition and non-solicitation covenants to
remain in place, divided by 12. The first such installment of Base
Salary and target bonus shall be paid on or before the delivery of the
notice described in the prior sentence of this Paragraph 7a(ii) . The
non-competition and non-solicitation provisions of this Agreement
shall no longer apply to Employee if the Company fails to pay the
amounts required under this Section 7a(ii) for an uninterrupted 10 day
period and such failure is not cured with 5 days after written notice
of such failure is delivered to the Company.
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b. In the event Employee's employment with the Company (including its
subsidiaries) is terminated by the Company for any reason other than for
Cause as provided in Paragraph 5 and other than as a consequence of
Employee's death, disability, or normal retirement under the Company's
retirement plans and practices, then the following provisions apply. These
same provisions shall apply if Employee terminates his employment with
Good Reason as described in Paragraph 6. In addition to the amounts stated
below, Employee shall be paid any other amounts by the Company to which he
is entitled.
SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. On or before
Employee's last day of employment with the Company, the Company shall pay
in a lump sum to Employee as compensation for services rendered to the
Company a cash amount equal to one-half the amount of Employee's annual
Base Salary and the greater of (x) one-half the target bonus under the
Management Bonus Program as in effect immediately prior to his date of
termination or (y) the amount of the bonus under the Management Bonus
Program to which he is entitled but which remains unpaid. At the election
of the Company, the cash amount referred to in this Paragraph 7b.i. may
be paid to Employee in periodic installments, without interest, in
accordance with the regular salary payment practices of the Company, with
the first such installment to be paid on or before Employee's last day of
employment with the Company, and no interest shall be paid with respect
to any amount not paid on the Employee's date of termination.
VESTING OF OPTIONS AND RIGHTS. Notwithstanding the
vesting period provided for in the Stock Incentive Plan and any related
stock option agreements between the Company and Employee for stock
options ("options") and stock appreciation rights ("rights") granted
Employee by the Company, all options and stock appreciation rights that
were exercisable at the date of termination or within 12 months
thereafter shall be immediately exercisable upon termination of
employment. In addition, Employee will have the right to exercise all
such options and rights for the shorter of (a) six months following his
termination of employment or (b) with respect to each option, the
remainder of the period of exercisability under the terms of the
appropriate documents that grant such options.
iii. BENEFIT PLAN COVERAGE. The Company shall maintain in full force
and effect for Employee and his dependents for six months after the date
of termination, all life, health, accident, and disability benefit plans
and other similar employee benefit plans, programs and arrangements in
which Employee or his dependents were entitled to participate immediately
prior to the date of termination, in such amounts as were in effect
immediately prior to the date of termination, provided that such
continued participation is possible under the general terms and
provisions of such benefit plans, programs and arrangements.
In the event that participation in any benefit plan, program or arrangement
described above is barred, or any such benefit plan, program or arrangement is
discontinued or the benefits thereunder materially reduced, the Company shall
arrange to provide Employee and his dependents for six months after the date of
termination with benefits substantially similar to those that they were
entitled to receive under such benefit plans, programs and arrangements
immediately prior to the date of termination. Notwithstanding any time period
for continued benefits stated in this Paragraph 7b.iii., all benefits in this
Paragraph 7b.iii. will terminate on the date that Employee becomes an employee
of another employer and eligible to participate in the employee benefit plans
of such other employer. To the extent that Employee was required to contribute
amounts for the benefits described in this Paragraph 7b.iii. prior to his
termination, he shall continue to contribute such amounts for such time as
these benefits continue in effect after termination.
iv. OTHER COMPENSATION. Any awards previously made to Employee under any
of the Company's compensation plans or programs and not previously paid shall
immediately vest on the date of his termination and shall be paid on that date
and included as compensation in the year paid.
v. SAVINGS AND OTHER PLANS. Except as otherwise more specifically
provided herein or under the terms of the respective plans relating to
termination of employment, Employee's active participation in
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any applicable savings, retirement, profit sharing or supplemental employee
retirement plans or any deferred compensation or similar plan of the Company or
any of its subsidiaries shall continue only through the last day of his
employment. All other provisions, including any distribution and/or vested
rights under such plans, shall be governed by the terms of those respective
plans.
vi. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraphs 14 and 15 shall continue, beyond the time periods set forth in such
paragraphs, to apply with respect to Employee for six (6) months following the
date of termination, and at the end of such six (6) month period, the Company
shall have the right to extend the time period of noncompetition and
nonsolicitation for an additional six (6) months by giving written notice to
Employee of such extension and paying to Employee an amount equal to one-half
the amount of Employee's annual Base Salary and one-half the target bonus under
the Management Bonus Program as in effect immediately prior to his date of
termination. At the election of the Company, the cash amount referred to in the
prior sentence of this Paragraph 7b.vi. may be paid to Employee in periodic
installments in accordance with the regular salary payment practices of the
Company, with the first such installment to be paid on or before the delivery
of the notice described in the first sentence of this Paragraph 7b.vi., and no
interest shall be paid with respect to any amount paid in installments. The
noncompetition and nonsolicitation provisions of this Agreement shall no longer
apply to Employee if the Company fails to pay the amounts required under the
provisions of Paragraph 7b.i. or the first two sentences of this Paragraph
7b.vi. for an uninterrupted 10-day period and such failure is not cured within
5 days after written notice of such failure is delivered to the Company.
c. The provisions of this Paragraph 7 shall apply if Employee's employment
is terminated prior to or more than one year after the occurrence of a Change
of Control (as defined in Paragraph 8c.). From the occurrence of any Change of
Control until the first anniversary of such Change of Control, the provisions
of Paragraph 8 shall apply in place of this Paragraph 7, except that in the
event that Employee's employment is terminated by Employee after a Change of
Control without Good Reason, then the provisions of Paragraph 8 shall not apply
and the provisions of Paragraph 7a. shall apply. Termination upon death,
disability and retirement are covered by Paragraphs 9, 10, and 11,
respectively.
8. PAYMENT AND OTHER PROVISIONS AFTER CHANCRE OF CONTROL.
a. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS. In the event Employee's
employment with the Company is terminated within one year following the
occurrence of a Change of Control (other than as a consequence of his death or
disability, or of his normal retirement under the Company's retirement plans
and practices) either (i) by the Company for any reason whatsoever or (ii) by
Employee with Good Reason as provided in Paragraph 6, then Employee shall be
entitled to receive from the Company, the following:
i. BASE SALARY. An amount equal to one-half the Employee's annual Base
Salary as in effect at the date of termination shall be paid on the date
of termination;
ii. TARGET BONUS. An amount equal to one-half the Employee's target
bonus under the Management Bonus Program for the fiscal year in which the
date of termination occurs shall be paid on the date of termination; and
iii. OTHER BENEFITS. All benefits under Paragraphs 7b.i, 7.b.ii.,
7b.iii. 7b.iv. and 7b.v. shall be extended to Employee as described in
such paragraphs except that all options and rights shall be immediately
exercisable and the period for exercise of options and rights described in
the
6
<PAGE> 5
last sentence of Paragraph 7b.ii and benefit plan coverage as described in
Paragraph 7.b.iii shall be one half year.
b. NONCOMPETITION/NONSOLICITATION PERIOD. In the event of a termination
under the circumstances described in Paragraph 8a., the provisions of
Paragraphs 14 and 15 shall be without force and effect and shall not apply
to Employee.
c. For purposes of this Agreement, the term "Change of Control" shall
mean:
i. The acquisition, other than from the Company, by any individual,
entity or group (within the meaning of ss. 13(d)(3) or ss. 14 (d) (2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) (any of the foregoing described in this Paragraph
hereafter a "Person") of 30% or more of either (a) the then outstanding
shares of Capital Stock of the Company (the "Outstanding Capital Stock")
or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Voting Securities") , provided, however, that any
acquisition by (x) the Company or any of its subsidiaries, or any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any of its subsidiaries or (y) any Person that is eligible,
pursuant to Rule 13d-l(b) under the Exchange Act, to file a statement on
Schedule 13G with respect to its beneficial ownership of Voting
Securities, whether or not such Person shall have filed a statement on
Schedule 13G, unless such Person shall have filed a statement on Schedule
13D with respect to beneficial ownership of 30% or more of the Voting
Securities or (z) any corporation with respect to which, following such
acquisition, more than 60% of, respectively, the then outstanding shares
of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Capital Stock and Voting Securities immediately prior to such
acquisition in substantially the same proportion as their ownership,
immediately prior to such acquisition, of the outstanding Capital Stock
and Voting Securities, as the case may be, shall not constitute a Change
of Control; or
ii. Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director subsequent
to the date hereof whose election or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of the Directors of the Company (as such terms
are used in Rule 14a-11 of Regulation 14A, or any successor section,
promulgated under the Exchange Act); or Approval by the shareholders of
the Company of a reorganization, merger or consolidation (a "Business
Combination") , in each case, with respect to which all or substantially
all holders of the Outstanding Capital Stock and Voting Securities
immediately prior to such Business Combination do not, following such
Business Combination, beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may be, of
the corporation resulting from Business Combination; or v. (a) a complete
liquidation or dissolution of the Company or (b) a sale or other
disposition of all or substantially all of the assets of the Company
other than to a corporation with respect to which, following such sale or
disposition, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then
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outstanding voting securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting
Securities immediately prior to such sale or disposition in substantially
the same proportion as their ownership of the Outstanding Capital Stock and
Voting Securities, as the case may be, immediately prior to such sale or
disposition.
9. TERMINATION BY REASON OF DEATH. If Employee shall die while employed by
the Company both prior to termination of employment and during the effective
term of this Agreement, all Employee's rights under this Agreement shall
terminate with the payment of such amounts of annual Base Salary as have
accrued but remain unpaid and a prorated amount of targeted bonus under the
Company's Management Bonus Program through the month in which his death occurs,
plus three additional months of the fixed salary and targeted bonus. All
benefits under 7b.ii., 7b.iv and 7b.v. shall be extended to Employee's estate
as described in such paragraphs.
In addition, Employee's eligible dependents shall receive continued benefit
plan coverage under Paragraph 7b.iii. for three months from the date of
Employee's death.
10. TERMINATION BY DISABILITY. Employee's employment hereunder may be
terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of such amounts of annual
Base Salary as have accrued but remain unpaid as of thirtieth (30th) day after
such notice is given except that all benefits under Paragraphs 7b.ii, 7b.iii,
7b.iv. and 7b.v. shall be extended to Employee as described in such paragraphs.
In addition, the noncompetition and nonsolicitation provisions of Paragraphs 14
and 15 shall continue to apply to Employee for a period of one year from the
date of termination.
For purposes of this Agreement, "disability" is defined to mean that, as a
result of Employee's incapacity due to physical or mental illness:
a. Employee shall have been absent from his duties as an officer of the
Company on a substantially full-time basis for six (6) consecutive months;
and
b. Within thirty (30) days after the Company notifies Employee in
writing that it intends to replace him, Employee shall not have returned to
the performance of his duties as an officer of the Company on a full-time
basis.
ii. RETIREMENT. Retirement by Employee, whether occurring as a result of a
voluntary termination by Employee or an involuntary termination as the result
of reaching the age retirement as set forth in the Company's retirement
policies, shall be treated as a voluntary termination without Good Reason and
the provisions of Paragraph 7a. shall apply. If during the Term or any
extension thereof, the Company adopts a retirement plan with respect to
executive officers of the Company, Employee shall have the right to participate
in such policy and the provisions of such policy shall supersede the provisions
of the preceding sentence.
12. INDEMNIFICATION. If litigation shall be brought, in the event of breach
or to enforce or interpret any provision contained herein, the non-prevailing
party shall indemnify the prevailing party for reasonable attorney's fees
(including those for negotiations, trial and appeals) and disbursements
incurred by the prevailing party in such litigation, and hereby agrees to pay
prejudgment interest on any money judgment obtained by the prevailing party
calculated at the generally prevailing NationsBank of Florida, N.A. base
<PAGE> 7
rate of interest charged to its commercial customers in effect from time to time
from the date that payment(s) to him should have been made under this
Agreement.
13. (Omitted Intentionally)
14. NONCOMPETITION.
a. At all times during Employee's employment hereunder, and for such
additional periods as may otherwise be set forth in this Agreement in
reference to this Paragraph 14, Employee shall not, directly or
indirectly, engage in any business, enterprise or employment, whether as
owner, operator, shareholder, director, partner, creditor, consultant,
agent or any capacity whatsoever that manufactures products designed to
compete directly with products of the Company or markets such products
anywhere in the world where the Company (i) is engaged in business or (ii)
has evidenced an intention of engaging in business. Employee acknowledges
that he has read the foregoing and agrees that the nature of the
geographical restrictions are reasonable given the international nature of
the Company's business.
In the event that these geographical or temporal restrictions are
judicially determined to be unreasonable, the parties agree that these
restrictions shall be judicially reformed to the maximum restrictions which
are reasonable.
b. Notwithstanding the provisions of the preceding Paragraph 14a.,
Employee may accept employment with a company that would be deemed to be a
competitor of the Company as described in the previous sentence
("Competitor") , so long as (i) the Competitor has had annual revenues of
at least $1 billion in each of the prior two fiscal years, (ii) the
Competitor's revenues for products and maintenance in direct competition
with the Company does not exceed 50% of its total revenues and (iii)
Employee's responsibilities are solely for divisions or subsidiaries of the
Competitor that do not compete with the Company.
15. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. At all times during
Employee's employment hereunder, or for such additional periods as may
otherwise be set forth in this Agreement in reference to this Paragraph 15,
Employee shall not, directly or indirectly, for himself or for any other
person, firm, corporation, partnership, association or other entity (a) attempt
to employ, employ or enter into any contractual arrangement with any employee
or former employee of the Company, its affiliates, subsidiaries or predecessors
in interest, unless such employee or former employee has not been employed by
the Company, its affiliates, subsidiaries or predecessors in interest during
the twelve months prior to Employee's attempt to employ him, or (b) call on or
solicit any of the actual or targeted prospective customers of the Company or
its affiliates, subsidiaries or predecessors in interest with respect to any
matters related to or competitive with the business of the Company.
16. CONFIDENTIALITY.
a. NONDISCLOSURE. Employee acknowledges and agrees that the
Confidential Information (as defined below) is a valuable, special and
unique asset of the Company's business. Accordingly, except in connection
with the performance of his duties hereunder, Employee shall not at any
time during or subsequent to the term of his employment hereunder
disclose, directly or indirectly, to any person, firm, corporation,
partnership, association or other entity any proprietary or confidential
information relating to the Company or any information concerning the
Company's financial condition or prospects, the Company's customers, the
design, development, manufacture, marketing or sale of the
<PAGE> 8
Company's products or the Company's methods of operating its business
(collectively "Confidential Information"). Confidential Information shall
not include information which, at the time of disclosure, is known or
available to the general public by publication or otherwise through no act
or failure to act on the part of Employee.
b. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of Employee's
employment, for whatever reason and whether voluntary or involuntary, or
at any time at the request of the Company, Employee shall promptly return
all Confidential Information in the possession or under the control of
Employee to the Company and shall not retain any copies or other
reproductions or extracts thereof. Employee shall at any time at the
request of the Company destroy or have destroyed all memoranda, notes,
reports, and documents, whether in "hard copy" form or as stored on
magnetic or other media, and all copies and other reproductions and
extracts thereof, prepared by Employee and shall provide the Company with
a certificate that the foregoing materials have in fact been returned or
destroyed.
c. BOOKS AND RECORDS. All books, records and accounts whether prepared
by Employee or otherwise coming into Employee's possession, shall be the
exclusive property of the Company and shall be returned immediately to
the Company upon termination of Employee's employment hereunder or upon
the Company's request at any time.
17. INIUNCTION/SPECIFIC PERFORMANCE SETOFF. Employee acknowledges that a
breach of any of the provisions of Paragraphs 14, 15 or 16 hereof would result
in immediate and irreparable injury to the Company which cannot be adequately
or reasonably compensated at law. Therefore, Employee agrees that the Company
shall be entitled, if any such breach shall occur or be threatened or
attempted, to a decree of specific performance and to a temporary and permanent
injunction, without the posting of a bond, enjoining and restraining such
breach by Employee or his agents, either directly or indirectly, and that such
right to injunction shall be cumulative to whatever other remedies for actual
damages to which the Company is entitled. Employee further agrees that the
Company may set off against or recoup from any amounts due under this Agreement
to the extent of any losses incurred by the Company as a result of any breach
by Employee of the provisions of Paragraphs 14, 15 or 16 hereof.
18. SEVERABILITY. Any provision in this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
19. SUCCESSORS. This Agreement shall be binding upon Employee and inure to
his and his estate's benefit, and shall be binding upon and inure to the
benefit of the Company and any permitted successor of the Company. Neither this
Agreement nor any rights arising hereunder may be assigned or pledged by:
Employee or anyone claiming through Employee; or by the Company, except to any
corporation which is the successor in interest to the Company by reason of a
merger, consolidation or sale of substantially all of the assets of the
Company.
The foregoing sentence shall not be deemed to have any effect upon the rights
of Employee upon a Change of Control.
20. CONTROLLING LAW. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Florida.
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21. NOTICES. Any notice required or permitted to be given hereunder shall
be written and sent by registered or certified mail, telecommunicated or hand
delivered at the address set forth herein or to any other address of which
notice is given:
To the Company: CyberGuard Corporation
2101 West Cypress Creek Road
Fort Lauderdale, Florida 33309
Attention: President
To Employee: Robert Lawten
6786 Viento Way
Boca Raton, FL 33433
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto on the subject matter hereof and may not be modified
without the written agreement of both parties hereto.
23. WAIVER. A waiver by any party of any of the terms and conditions hereof
shall not be construed as a general waiver by such party.
24. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which together shall constitute a
single agreement.
25. INTERPRETATION. In the event of a conflict between the provisions of
this Agreement and any other agreement or document defining rights and duties
of Employee or the Company upon Employee's termination, the rights and duties
set forth in this Agreement shall control.
26. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7b. provides that certain
payments and other benefits shall be received by Employee upon the termination
of Employee by the Company other than for Cause and states that these same
provisions shall apply if Employee terminates his employment for Good Reason.
It is the intention of this Agreement that if the Company terminates Employee
other than for Cause (and other than as a consequence of Employee's death,
disability or normal retirement) or if Employee terminates his employment with
Good Reason, then the payments and other benefits set forth in Paragraph 7b.
shall constitute the sole and exclusive remedies of Employee.
27. SURVIVAL. Notwithstanding the provisions of Paragraph 2, the provisions
of Paragraphs 14, 15, and 16 shall survive the expiration or early termination
of this Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
COMPANY:
EMPLOYEE: